Jarrod Hennig v The Queen

[2021] VSCA 40

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2019 0217

JARROD HENNIG	Applicant
v
THE QUEEN	Respondent

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JUDGE:	KAYE JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	Determined on the papers
DATE OF JUDGMENT:	4 March 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 40
JUDGMENT APPEALED FROM:	[2019] VCC 1305 (Judge Stuart)

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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009

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CRIMINAL LAW – Appeal – Sentence – Parity – Applicant ran a drug trafficking syndicate – Applicant pleaded guilty to trafficking in a commercial quantity of a drug of dependence (methylamphetamine), trafficking in a drug of dependence (ketamine), and possession of a drug of dependence (cannabis) – Total effective sentence 8 years 11 months’ imprisonment with non-parole period of 6 years – One co-accused pleaded guilty to one charge of incitement to traffick in a drug of dependence (methylamphetamine) – Co-accused was a customer of applicant’s drug syndicate – Co-accused sentenced to 4 years 6 months’ imprisonment with non-parole period of 2 years 8 months – Whether judge erred by imposing sentences on applicant and co-accused for methylamphetamine offences that were manifestly too disparate – No error in differentiation between sentences imposed –Leave to appeal refused.

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APPEARANCES (on the papers):	Counsel	Solicitors
For the Applicant	Mr D A Dann QC	Leanne Warren & Associates
For the Respondent	Mr C Boyce QC	Ms A Hogan, Solicitor for Public Prosecutions

KAYE JA:

1. The applicant pleaded guilty to one charge of trafficking in a commercial quantity of a drug of dependence (methylamphetamine), one charge of trafficking in a drug of dependence (ketamine) and one charge of possession of a drug of dependence (cannabis).  He was sentenced to a total effective sentence of 8 years and 11 month’s imprisonment with a non-parole period of 6 years.  That sentence was constituted as follows:

Charge on Indictment	Charge	Maximum Penalty	Sentence	Cumulation
1	Trafficking in a drug of dependence — commercial quantity (methylamphetamine)	25 years’ imprisonment	8 years 1 month imprisonment	Base sentence
2	Trafficking in a drug of dependence (ketamine)	15 years’ imprisonment	1 year 6 months’ imprisonment	6 months’ imprisonment
3	Possession of a drug of dependence (cannabis)	5 years’ imprisonment	12 months’ imprisonment	4 months’ imprisonment
Total Effective Sentence		8 years 11 months’ imprisonment
Non-Parole Period		6 years’ imprisonment
Pre-Sentence Detention Declared		956 days’ imprisonment
6AAA Declaration		11 years 6 months’ imprisonment with a non-parole period of 8 years’ imprisonment
Other Relevant Orders		Disposal and Forfeiture Orders

1. A co-accused, Andrew Harrison (‘Harrison’) was also sentenced on that day as follows:

Charge on Indictment	Charge	Maximum Penalty	Sentence	Cumulation
1	Incitement to traffick in a drug of dependence (methylamphetamine)	15 years’ imprisonment	4 years 6 months’ imprisonment	Base sentence
Total Effective Sentence		4 years 6 months’ imprisonment
Non-Parole Period		2 years 9 months’ imprisonment
Pre-Sentence Detention Declared		687 days’ imprisonment
6AAA Declaration		6 years 6 months’ imprisonment with a non-parole period of 4 years’ imprisonment
Other Relevant Orders		Disposal and Forfeiture Orders

1. Another co-accused, Osama Elsayed (‘Elsayed’) was also sentenced on that day as follows:

Charge on Indictment	Charge	Maximum Penalty	Sentence	Cumulation
1	Trafficking in a drug of dependence	15 years’ imprisonment	3 years, 4 months and 4 days’ imprisonment	Base sentence
2	Possession of a drug of dependence (cannabis)	12 months’ imprisonment	Proven and dismissed	Nil
3	Possession of a drug of dependence (testosterone)	12 months’ imprisonment	7 days’ imprisonment	Nil
4	Possession of a precursor chemical	5 years’ imprisonment	1 month imprisonment	Nil
Summary Offence Charges	Possession of cartridge ammunition	40 penalty units	$500	N/A
Total Effective Sentence		3 years, 4 months and 4 days’ imprisonment
Non-Parole Period		1 year, 4 months and 8 days’ imprisonment
Pre-Sentence Detention Declared		16 days’ imprisonment
6AAA Declaration		4 years’ imprisonment with a non-parole period of 2 years 6 months’ imprisonment
Other Relevant Orders		Disposal and Forfeiture Orders

1. The applicant seeks leave to appeal against the sentence on the following ground:

The learned judge erred in imposing sentences on the applicant and the co-offender Harrison for their respective involvement in the offending that related to methylamphetamine that were manifestly too disparate and that failed to achieve appropriate relativity as between these two co-offenders.

1. For the reasons that follow, I would refuse leave to appeal.

Circumstances of the commission of the offences

1. The charges arose out of an investigation commenced by police in September 2015 into the drug trafficking activities of the applicant and his associates.  It culminated in the arrest of the applicant and his co-offenders in April and May 2016. 

1. At the time of the offending the applicant was engaged in a legitimate business in building and construction which he operated from a factory at Airport West.  The applicant also conducted a drug trafficking business from those premises.  His co-accused Elsayed assisted and partnered the applicant in the drug trafficking business.  The other co-accused, Harrison, resided in Townsville, Queensland.  He purchased methylamphetamine from the applicant, and on occasions came to Melbourne in relation to the purchase of methylamphetamine from the applicant. 

1. The period of offending alleged in the first charge was between 11 November 2015 and 3 April 2016.  The amount of methylamphetamine, that was trafficked by the applicant during that period, could not be quantified on the evidence of each transaction which occurred.  The prosecution identified eight specific transactions in respect of which it was possible to quantify, on a conservative basis, the amount of methylamphetamine trafficked by the applicant.  The total amount of methylamphetamine estimated to be trafficked by the applicant in those eight transactions was 1,086.5 grams.  Under the relevant provisions of the Drugs, Poisons and Controlled Substances Act 1981, a commercial quantity of methylamphetamine is specified as being over 500 grams mixed or 100 grams pure.  A large commercial quantity is specified as 1000 grams mixed.  While the quantity of methylamphetamine, trafficked by the applicant in the course of the eight transactions, exceeded that figure, the applicant was charged, and sentenced, on the basis that he trafficked a commercial quantity during that period. 

1. In summary, the first five transactions, relied on by the prosecution, were as follows:

(1)Between 11 November 2015 and 7 December 2015, the applicant supplied 140 grams of methylamphetamine to Harrison in respect of which Harrison paid $28,000, which was deposited, by five deposits, into the bank account of another co-accused, Aydin Emin (‘Emin’).

(2)On about 7 or 8 January 2016, the applicant supplied 112 grams mixed of methylamphetamine to Harrison in exchange for $20,000, which was paid by Harrison to another co-accused, David Lister (‘Lister’) who flew to Townsville to collect that payment.

(3)Between 28 and 29 January 2016, Lister again flew to Townsville to collect $20,000 from Harrison in payment of a further amount of 112 grams mixed of methylamphetamine supplied by the applicant to Harrison.

(4)On 2 March 2016, Harrison came to Melbourne to pay the applicant $20,000 in payment for an amount of 112 grams mixed methylamphetamine supplied by the applicant to Harrison.

(5)On 4 April 2016, Lister flew to Townsville carrying 452 grams of crystal methylamphetamine (294 grams pure methylamphetamine) to supply to Harrison.  However Lister was arrested at Townsville Airport in possession of three packages containing the methylamphetamine.  In respect of the charge against Harrison, there was no evidence that he was aware of the exact quantity, and therefore the prosecution proceeded against Harrison on the basis that he knew that the aborted delivery involved 112 grams of mixed methylamphetamine.

1. Pausing there, the first five transactions involved the applicant trafficking 928 grams of methylamphetamine, and Harrison trafficking 588 grams of that substance. 

1. The sixth, seventh and eighth transactions did not involve Harrison, but involved Bianca Webb (‘Webb’), who was a customer of the applicant.  Those transactions were as follows:

(a)               On 18 to 19 February 2018 the applicant supplied Webb 26.5 grams of methylamphetamine in exchange for $6,000.

(b)              On 3 March 2016 the applicant supplied Webb 112 grams of methylamphetamine.

(c)               On 3 April 2016 the applicant supplied Webb 20 grams of methylamphetamine in exchange for $4,000.

1. The applicant and Elsayed were both arrested on 2 May 2016.  The applicant made a ‘no comment’ record of interview. 

1. After the applicant was arrested, on a search of his vehicle, police found a sock in a panel that had a zip lock bag which contained 575.4 grams of ketamine of 20 per cent purity (that is, 115.1 grams pure).  That quantity was the subject of charge 2 which alleged that the applicant trafficked in a drug of dependence (ketamine) between 30 April and 2 May 2016. 

1. On the same date, police executed a search warrant at premises to which the applicant was linked.  There they found a hydroponic cannabis plantation, which included 22 cannabis plants and four leafy cannabis stems weighing 8.5 kilograms.  In addition, there was hydroponic equipment in the premises, that included shades, transformers, high power globes, an electronic switchboard, electronic bypass of the electrical power and a grow chart program.  Those matters were the subject of charge 3, namely, possession of a drug of dependence (cannabis). 

1. The applicant first made an offer to plead guilty on 25 June 2018.  That offer was accepted on 13 July 2018.  On arraignment on 20 July 2018, the applicant pleaded guilty to the charges against him. 

Previous convictions

1. The applicant was born on 18 November 1983.  He had limited previous convictions, apart from for two road traffic offences.  On 6 August 2010, he was convicted and fined $1,250 by the Bacchus Marsh Magistrates’ Court on one charge of reckless conduct endangering serious injury.

The plea

1. The applicant completed his education to Year 10.  He then undertook a roof tiling apprenticeship.  In 2003 (at the age of 20 years) he commenced his own roof tiling business, which two years later went into liquidation.  The applicant then worked for one year as a roof inspector, which involved him compiling reports on conditions of roofs for insurance purposes.  The business was initially successful, but it went into voluntary liquidation in 2009 when the insurance company, that was the primary source of the work, rationalised and reduced to a small number of the persons who they engaged for insurance reports. 

1. In 2010, the applicant established the building construction business, Trades Group, which he conducted at the time he undertook the drug trafficking activities. 

1. The applicant had a difficult childhood.  He was the second of four children.  His father, a police officer, abused alcohol and, when inebriated, engaged in domestic violence against his family.  As a result, the applicant had a fractured relationship with his father. 

1. The applicant for some time used drugs.  His father died in 2008, having been diagnosed a few months previously with pancreatic cancer.  After his father’s death, the applicant’s drug use escalated significantly.  He found that buying drugs in bulk made them cheaper, and from there he progressed to trafficking drugs. 

1. The applicant was assessed by Ms Carla Lechner, a clinical psychologist, in November 2018.  Ms Lechner considered that the applicant fulfilled the criteria of a Major Depressive Disorder, which related both to his current predicament and to ongoing unresolved grief arising from the death of his father and the circumstances of it.  Ms Lechner considered that, provided he remain abstinent, the applicant had a favourable diagnosis because he had a supportive family and partner, he had good employment prospects and a good work ethic, he had insight into the wrongfulness of his actions, he recognised the need to sever ties with the drug subculture, and he was keen to engage with appropriate treatment services.

Sentencing reasons

1. In his reasons for sentence, the judge noted that the applicant was the principal of, and that he owned, the drug trafficking business, and that he ‘drew in’, as required, other persons to assist in that business.[1] 

   [1]DPP  v Elsayed [2019] VCC 1305, [54] (‘Reasons’).

1. The judge set out, in some detail, the applicant’s history and noted that in character references that were tendered to the Court, the applicant’s partner and sister had both described the efforts made by the applicant to overcome his drug addiction, and they noted his commitment to a healthier lifestyle.[2]  Assay results, that were tendered on the plea, established that the applicant had been drug free since his incarceration.[3]  In addition, the judge noted that there had been a considerable delay of some three years and three months before the disposition of the charges, and that during that time the applicant had been a ‘model prisoner’.[4] 

   [2]Ibid [64]–[68].

   [3]Ibid [74].

   [4]Ibid [74], [76].

1. The judge also noted that while the applicant’s pleas of guilty could not be described as early, nevertheless they resulted after negotiations which were necessary in light of the complexity of the evidence and issues relating to the charges.[5]  His Honour considered that the pleas of guilty were of considerable utilitarian value, and he accepted that the applicant was remorseful and insightful.[6]

   [5]Ibid [77].

   [6]Ibid [78].

1. The judge observed that different sentences must be passed on each of the applicant, Harrison and Elsayed, in light of their different roles, the duration of their offending, and, in some cases, the additional charges against them.[7] 

   [7]Ibid [79].

1. The judge noted that Harrison was not part of the operation of the syndicate, except his capacity as a customer of that syndicate.  Harrison had no previous convictions.  The judge considered that he too was entitled to rely on the delay in the disposition of the matter as a mitigating factor.[8]

   [8]Ibid [74]–[75], [81]–[82].

1. Harrison was a qualified fitter and turner, and, after completing that apprenticeship, had worked consistently in the mining industry in Australia and overseas.[9]  He suffered a workplace injury in 2016 which resulted in financial difficulties for him.  He sold his house and took time off to travel.[10]  At that time he adopted a ‘party lifestyle’ associated with excessive drug use.[11]  While in custody Harrison had remained drug free.  The judge accepted that his prospects of rehabilitation were good, subject to him remaining free of drugs.  His Honour accepted that Harrison’s period of incarceration in Victoria would be more onerous because he did not have any supports in Victoria and he had no physical contact with his family.[12]

   [9]Ibid [82].

   [10]Ibid [83].

   [11]Ibid [84].

   [12]Ibid [85].

Submissions

1. In support of the proposed ground of appeal, counsel for the applicant noted, first, that as against the applicant, the plea proceeded on the basis that the applicant supplied Harrison with a total of 928 grams of methylamphetamine (from five transactions) and that he supplied Webb with 158.5 grams of methylamphetamine (from three transactions).  Counsel acknowledged that, as against Harrison, the plea proceeded on the basis that he had incited the applicant to traffick to him 588 grams of methylamphetamine from those five transactions.  Further, it was acknowledged that the applicant pleaded guilty to the more serious offence of trafficking a commercial quantity, whereas Harrison pleaded guilty to the charge of incitement to traffick.  It was also acknowledged that the judge found that the applicant was the principal of the business and that Harrison was not a part of it.

1. Nevertheless, counsel emphasised, Harrison’s purpose, in purchasing the large quantities of methylamphetamine, was related to his own trafficking in Queensland.  Accordingly, it was submitted, Harrison could not be regarded as a mere customer of the applicant.  In those circumstances, it was submitted, the judge was entitled to take into account that Harrison’s purpose in purchasing such large quantities of methylamphetamine was for his own intended trafficking in Queensland.  Thus, it was submitted, the majority of the applicant’s quantifiable trafficking was to Harrison, who did not purchase the methylamphetamine for his own use, but, rather, for the intended purpose of trafficking that substance in Queensland for profit. 

1. Counsel for the applicant noted that there were a number of common features between the respective cases of the applicant and Harrison.  Both were sentenced on the basis that their offending had occurred in the context of their own drug addiction.  Neither Harrison nor the applicant had a relevant previous conviction.  They were both sentenced on the basis that their pleas of guilty involved significant utilitarian value.  Both the applicant and Harrison had made positive steps to rehabilitation during the long period of delay between their arrest and sentence.  The judge accepted that the prospects of rehabilitation of both the applicant and Harrison were very good.  On the other hand, counsel noted that the applicant had indicated an intention to plead guilty at a much earlier stage than Harrison.  The judge made a positive finding in favour of the applicant on the issues of remorse and insight.  Further, the delay was a more significant mitigating factor in favour of the applicant, because some of the delay was due to the fact that the charges against Harrison were not resolved until April 2019.  Finally, on the issue of totality, the applicant had already served an eight month period of imprisonment (on driving charges) while on remand for the present matter. 

1. In those circumstances, it was submitted that the difference between the sentence imposed on the applicant in respect of charge 1, and the sentence imposed on Harrison, could not be justified by the differences in their offending or in their circumstances.  Accordingly, it was submitted that there was such a manifest discrepancy between the sentences passed on them as to constitute sentencing error. 

1. In response, counsel for the respondent noted that there were important aspects relating to the offending by the applicant that were not applicable to Harrison, namely:

(d)              The applicant was a principal in the Victorian trafficking operation.

(e)               The charge against the applicant was a Giretti[13] charge in respect of a trafficking business in methylamphetamine which he conducted over a period of months and which extended beyond the eight particular quantifiable transactions.

(f)               The applicant was guilty of the more serious charge of trafficking in not less than a commercial quantity of methylamphetamine, which offence carried a maximum sentence of 25 years’ imprisonment.

(g)              The base raw amount that could be quantified as having been trafficked by the applicant fell within the large commercial quantity category (1,086.5 grams mixed), so that the applicant clearly engaged in ‘high end’ commercial trafficking.

[13]R v Giretti (1986) 24 A Crim R 112 (‘Giretti’).

1. On the other hand, counsel noted that the offending by Harrison was entirely different.  He was only charged with incitement, which was constituted by his encouragement to the applicant to traffick within Victoria by presenting himself as one of the syndicate’s customers.  Further, it was not put that, but for Harrison’s incitement, the applicant would not have trafficked methylamphetamine in Victoria.  Harrison’s acts of incitement related only to the offence of trafficking simpliciter, not commercial trafficking.  The raw quantifiable amount of methylamphetamine that could be linked to Harrison‘s offending was approximately one half of the amount that could be related to the trafficking by the applicant.  Further, unlike in the case of the applicant, Harrison was not alleged to have offended beyond the particular quantifiable transactions in which he presented himself to the applicant as a viable customer. 

1. In those circumstances, it was submitted, the sentencing judge could appropriately justify the imposition of a sentence on Harrison that was less than half on the sentence imposed on the applicant.  Counsel for the respondent further noted that the mitigating circumstances relied on by both the applicant and Harrison were of relatively equal weight.  In those circumstances, it was submitted that the differential in the sentences imposed on the applicant and Harrison respectively was not unreasonable or plainly unjust. 

Analysis and conclusions

1. The effect of the principle of parity in sentencing has been well established since the decisions of the High Court in Lowe v The Queen[14] and Postiglione v The Queen.[15]  The principle is based on the proposition that equal justice requires that, all things being equal, like co-offenders should be treated equally, subject to the qualification that relevant differences between the culpability of the offenders, and matters personal to them, be properly accommodated in the exercise of the sentencing discretion.

   [14](1984) 154 CLR 606, 610 (Gibbs CJ), 613–14 (Mason J), 623–4 (Dawson J); [1984] HCA 46.

   [15](1997) 189 CLR 295, 301–2 (Dawson and Gaudron JJ), 309 (McHugh J), 323 (Gummow J), 338 (Kirby J); [1997] HCA 26.

1. Sentencing error on the basis of disparity may occur where, taking into account the differences between the roles of the offenders in the offence, their respective levels of culpability, and their personal circumstances, there nevertheless is such a marked discrepancy between the sentences passed on co-offenders as to produce a justifiable sense of grievance in the objective bystander.  The imprecise nature of sentencing in each case, and the discretionary nature of sentencing, involving the balancing and synthesis of relevant considerations, is such that it may only be concluded that sentencing error has occurred where the appellate court considers that it was not open to the sentencing judge to differentiate in the sentences of the co-offenders in the way in which the judge did.[16]

   [16]See, eg, Hilder v The Queen[2011] VSCA 192, [38]–[39] (Maxwell ACJ); Roujnikov v The Queen[2015] VSCA 97, [25] (Weinberg and Kyrou JJA); Anthony v The Queen[2016] VSCA 22, [12] (Redlich and Beach JJA); Ryan v The Queen[2016] VSCA 255, [42] (Weinberg, Whelan and Priest JJA).

1. In R v Mercieca,[17] Winneke P (with whom Charles JA agreed) described the application of the relevant principle as follows:

In the circumstances of this appeal I want to issue this injunction.  There will be few cases where an appellate court can legitimately interfere with the sentence on what are loosely called ‘parity principles’.  Those principles are the product of the court’s desire to achieve equal justice which, in turn, aspires to the notion that ‘like should be treated alike ― but if there are relevant differences, due allowance should be made’.  However, those principles recognise that sentencing is itself an imprecise art in which judges are called upon to exercise discretions in respect of principles which are conflicting in their application and will almost inevitably produce disparity between sentences imposed, even in the case of co-offenders.  Thus before an appellate court can intervene on the basis of disparity, or lack of it, the authorities recognise that that disparity, or lack of it, must be ‘marked’ or ‘manifest’ and such as to produce a legitimate and justifiable sense of grievance in the objective observer.[18]

[17][2004] VSCA 170.

[18]Ibid [17] (citations omitted).

1. Applying those principles, the question, therefore, is whether it is reasonably arguable on behalf of the applicant that it was not open to the judge to differentiate between the sentence imposed on the applicant on charge 1, and the sentence imposed on Harrison, in the way in which his Honour did. 

1. In considering that question, the starting point is that, for a number of reasons, the offending by the applicant, that was the subject of charge 1, was significantly more serious than the offending on which  Harrison was sentenced. 

1. In the first place, the applicant was sentenced as the principal of the drug trafficking syndicate through which he engaged in the trafficking that was the subject of charge 1.  It was the applicant’s business, and he conducted it and directed the operation of it.  He was an active participant in the activities of the business.  In his sentencing reasons, the judge described some of those activities.  The applicant employed a BlackBerry to ensure secured encrypted communication between himself and Emin, Elsayed, Harrison and Lister.  He sourced drugs for the syndicate.  As part of the business of the syndicate, the applicant, with Elsayed’s assistance, recovered or attempted to recover various drug debts owing to it. 

1. By contrast, Harrison was not part of the operation of the syndicate, apart from being one of the syndicate’s customers.  The offending to which he pleaded guilty, namely, incitement to traffick in a drug of dependence, consisted of his conduct in purchasing substantial amounts of methylamphetamine from the applicant. 

1. The fact that Harrison purchased the methylamphetamine from the applicant, for the purpose of trafficking it in Queensland, was relevant to an evaluation of Harrison’s moral culpability for that offence.  However, it would not have been permissible for the judge to have sentenced Harrison for the drug trafficking activities in Queensland, or to have taken that circumstance into account in aggravation of Harrison’s offending. 

1. The second differentiating circumstance, between the offending of the applicant and that of Harrison, was that the charges, to which they respectively pleaded guilty, were significantly different.  The applicant pleaded guilty to trafficking in a drug of dependence in an amount that was not less than a commercial quantity.  The maximum sentence for that offence is 25 years’ imprisonment.  Harrison pleaded guilty to a charge of incitement to traffick in a drug of dependence, the maximum sentence for which is 15 years’ imprisonment.  In other words, the maximum sentence for the offence to which Harrison pleaded guilty was 60 per cent of the maximum sentence of the offence to which the applicant pleaded guilty. 

1. The third point of differentiation, between the offending of the applicant and that of Harrison, concerned the quantities of methylamphetamine that were trafficked in the identified transactions.  In total, the quantifiable amount of methylamphetamine trafficked by the applicant in the eight identified transactions was 1,086.5 grams.  Harrison was charged and sentenced on the basis that he incited the applicant to traffick to him 588 grams of that amount.  That is, his offending only related to an amount that was about one half of the quantity trafficked by the applicant in the eight identifiable transactions.

1. Charge 1 against the applicant, and the charge of incitement against Harrison, were both Giretti charges.  Although the prosecution was confined to identifying eight particular trafficking transactions involving the applicant, the evidence before the sentencing judge demonstrated that his trafficking during the period of the charge extended beyond those transactions.  In particular, as his Honour noted, there was an unexplained cash deposited into the applicant’s bank account of $13,000 in January 2016, and in February 2016, in an intercepted telephone conversation, the applicant told his mother that he had $150,000 in cash which he asked her to keep safe for him while he was absent on holiday. 

1. Pausing there, the differences between the nature, extent and seriousness of the offending to which the applicant pleaded guilty, and the offending to which Harrison pleaded guilty, were most substantial.  Those differences, in my view, fully justified the difference in the sentence imposed on the applicant on charge 1 as compared with the sentence imposed on Harrison.

1. There were some differences in the individual circumstances of both Harrison and the applicant, but, by and large, they were of relatively equal weight as mitigating factors.  Some of those differences, which have been identified in the submissions on behalf of the applicant, weighed in his favour.  However, there were other factors which weighed in favour of Harrison.  For example, he had no previous convictions, whereas the applicant had one prior previous conviction (other than some minor road traffic convictions).  The judge recognised that a period of incarceration in Victoria for Harrison would be more onerous, because he does not have any supports in Victoria and he has no physical contact with his family.  On any analysis, any differences, between the mitigating circumstances available to the applicant and Harrison, were minor in comparison with the extent to which the gravity of the applicant’s offending, on charge 1, so significantly exceeded that of Harrison.

1. In summary, then, the offending that was the subject of charge 1, and to which the applicant pleaded guilty, was significantly more serious than the offending to which Harrison pleaded guilty.  The personal circumstances, relied on by each of them in mitigation, were relatively equal in weight.  In those circumstances, I am not persuaded that it is reasonably arguable that the trial judge erred in differentiating between the sentence imposed on the applicant on charge 1 and the sentence imposed on Harrison in the way in which he did. 

1. It follows that the application for leave to appeal must be refused. 

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